Karnataka High Court
B Latha Divakar vs Balakrishna Divakar on 8 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO.1004 OF 2021 (DEC/INJ)
BETWEEN:
B. LATHA DIVAKAR
D/O BALAKRISHNA DIVAKAR
AGED ABOUT 44 YEARS,
R/O KUKKUVADESHWARI NILAYA,
VINAYAKA BADAVANE,
BEHIND KARNATAKA BANK,
HOSADURGA TOWN,
HOSADURGA TALUK,
CHITRADURGA DISTRICT - 577 515.
...APPELLANT
(BY SRI. MARUTHI G.B., ADVOCATE)
AND:
BALAKRISHNA DIVAKAR
S/O LATE DATTATHREYA DIVAKAR
Digitally AGED ABOUT 77 YEARS,
signed by R/O BAGUR VILLAGE,
SUMA B N
BAGUR POST,
Location: High
Court of HOSADURGA TALUK,
Karnataka CHITRADURGA DISTRICT - 577 515.
...RESPONDENT
(BY SRI. V.B. RAVISHANKAR, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CIVIL PROCEDURE CODE, AGAINST THE
JUDGMENT AND DECREE DATED 23RD APRIL, 2021 PASSED IN
REGULAR APPEAL NO.20 OF 2020 ON THE FILE OF THE
SPECIAL, II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING
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THE JUDGMENT AND DECREE DATED 09TH JANUARY, 2020
PASSED IN ORIGINAL SUIT NO.45 OF 2016 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC., HOSADURGA.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The unsuccessful defendant is before this Court in the
present second appeal being aggrieved by the judgment and
decree passed in Original Suit No.45 of 2016 on the file of the
Senior Civil Judge and JMFC, Hosadurga (for short, hereinafter
referred to as 'Trial Court'), by which the Trial Court had
decreed the suit filed by the plaintiff/respondent for declaration
and as such, declaring that the registered Gift Deed dated 24th
August, 2007 as null and void and not binding upon the
plaintiff in respect of the suit schedule property and further
ordered the said Gift Deed to be cancelled and consequently,
granted the relief of permanent injunction in favour of the
plaintiff. The said judgment and decree was confirmed by the
Special, 2nd Additional District and Sessions Judge, Chitradurga
(for short, hereinafter referred to as 'First Appellate Court') in
Regular Appeal No.20 of 2020 filed by the defendant/appellant.
Being aggrieved by the same, the appellant is before this Court.
2. The brief facts of the case are that,
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(a) The plaintiff being the father of the defendant,
filed the above suit contending that he and his wife
Susheela Divakar had a son and four daughters and the
plaintiff is the owner in possession and enjoyment of a
house property bearing Municipal Assessment
No.287/285/233 measuring East-West 39 feet and North-
South 18 feet situated at Vinayaka Layout, Hosadurga
Town and another house property bearing No.277,
measuring 19x79 feet situated at Baguru Village, Kasaba
Hobli, Hosadurga Taluk, described as item Nos.1 and 2 to
the schedule in the plaint. That the said properties were
purchased by the plaintiff under registered Sale Deeds
dated 22nd June, 2006 and 12th September, 1975
respectively.
(b) That during the year-2007, due to his old age,
the plaintiff intended to execute a registered Will in
respect of suit schedule properties bequeathing the same
in favour of his wife and children. That he had shared the
said intention with the defendant and the defendant had
assured the plaintiff that she would assist him in
executing the Will and registering the same in the office of
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the Sub-Registrar, Hosadurga. That during the month of
August-2007, when the plaintiff reminded the defendant
of his said intention to execute the Will, the defendant
had assured that she would make all necessary
arrangements for the same and she required the plaintiff
to accompany her to the office of the Sub-Registrar to
execute and register the Will. That the plaintiff was
informed by the defendant that all the papers were ready
in the office of the Sub-Registrar and as there was a lot of
rush in the office of the Sub-Registrar, the defendant had
insisted the plaintiff that he need not go through the
papers as the defendant had got it done in the manner as
desired by the plaintiff. Thus the plaintiff believing the
defendant since she is his own daughter and reposing
trust in her, had affixed the signature on the documents
without going through the contents of the same.
(c) That the plaintiff was always under the
impression that he had executed the Will. The defendant
did not handover the registered Will to the plaintiff, but he
was informed by the defendant that he had to keep the
fact of executing the Will and the contents thereof as a
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secret from his son and other daughters including his wife
to whom he had intended to give conditional right to
reside in the property during the lifetime and the
defendant had assured the plaintiff that he need not
worry in the matter as she would take care of all the
issues. That believing the version of the defendant, the
plaintiff had kept quite in the matter as he had abundant
love and affection towards the defendant.
(d) During the month of January-2013, when the
plaintiff intended to make certain changes in the Will and
he had informed the same to the defendant and the
defendant had responded that she would do the needful.
However, the defendant protracted the matter on one or
other pretext, which constrained the plaintiff to apply for
a copy of the Will during the third week of January-2013
and only then he learnt that the document that he had
executed on 24th August, 2007, was not a Will but a Deed
of Gift.
(e) That the plaintiff at no point of time intended to
execute the Gift deed in favour of the defendant and he
was under the impression that he had executed a
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registered Will in favour of his wife and children, however,
the defendant had mislead the plaintiff and got executed
the Deed of Gift in her favour. It was also contended by
the plaintiff that he never intended to part with the
ownership or possession of the suit schedule property to
defendant. When he confronted the defendant, the
defendant informed the plaintiff that it happened due to
mistake and same would be rectified. In this regard, in
spite of repeated requests and demand by the plaintiff,
the defendant did not comply with the same and finally
she refused to re-convey the property, constraining the
plaintiff to file the suit.
3. On service of summons, the defendant appeared and
filed written statement denying the averments and allegations
made in the plaint. It was contended by the defendant that,
she was the owner in possession and enjoyment of schedule
property by virtue of the Gift Deed dated 24th August, 2007
executed by the plaintiff. Further it is contended by her that
the plaintiff has voluntarily executed the Gift Deed in her favour
knowing fully the contents of the same and that he had affixed
his signature in presence of the witnesses who appeared before
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the Sub-Registrar, Hosadurga and the defendant has received
the schedule property from the plaintiff and ever since then,
she was in possession and enjoyment of the same. The
defendant in her written statement, further contended that the
the suit was filed by the plaintiff at the instance of one of the
daughter of the plaintiff only to harass the defendant. It was
also contended that the defendant had constructed first floor
and second floor building after obtaining the loan from Bank.
Hence, she sought for dismissal of the suit.
4. The defendant also sought for counter claim in the
nature of declaration that she is the owner in possession and
enjoyment of the schedule property and consequent relief of
permanent injunction. In turn, the plaintiff had filed written
statement denying the counter claim averments and contended
that the defendant had misrepresented and played fraud upon
the plaintiff in creating the Gift Deed though he never parted
either with the possession or the parent deeds of the suit
properties. Accordingly, the plaintiff sought for rejection of the
counter claim.
5. The Trial Court framed issues and recorded the
evidence. The plaintiff had examined himself as PW-1 and
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produced 24 documents, which were marked as Exhibits P1 to
P24. On the other hand, no evidence has been adduced on
behalf of the defendant except producing 5 documents which
were marked as Exhibits D1 to D5. The Trial Court, on
appreciation of evidence, answered the issues in favour of
plaintiff and accordingly, decreed the suit, declaring that the
execution of Gift Deed dated 24th August, 2007 null and void
and not binding upon the plaintiff and consequently, granted
permanent injunction in favour of the plaintiff in respect of the
schedule properties. Being aggrieved by the same, the
defendant preferred appeal in Regular Appeal No.20 of 2020
before the First Appellate Court. The First Appellate Court,
considering the grounds urged in the appeal, had framed points
for its consideration and on re-appreciation of the material
evidence adduced by the parties, answered the same in the
negative. The First Appellate Court dismissed the appeal and
confirmed the judgment and decree dated 09th January, 2020
passed by the Trial Court in Original Suit No.45 of 2016. Being
aggrieved by the same, the defendant/appellant is before this
Court.
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6. Sri. Maruthi G.B., learned counsel appearing for the
appellant reiterating the grounds urged in the memorandum of
appeal submitted that the Trial Court and First Appellate Court
have grossly erred in not appreciating the fact that the very
suit was not maintainable inasmuch as the plaintiff has not
sought for possession of the schedule properties. He further
submits that suit filed for declaration by the plaintiff without
seeking relief of possession was not maintainable. He further
submits that the Gift Deed was executed on 24th August, 2007
and the suit was filed during the year-2016 and as such, there
was an inordinate delay in filing the suit, which had not been
taken into consideration by the Trial Court as well as the First
Appellate Court. He further submits that none of the witnesses
to the Gift Deed have been examined by the plaintiff to prove
the element of fraud and hence, the execution of the Gift Deed
cannot be disbelieved. Learned counsel further submits that
the burden of the proving exertion of fraud by the defendant in
executing the Gift Deed is on the plaintiff and that burden not
having been discharged by the plaintiff, the Trial Court and
First Appellate Court could not have decreed the suit in favour
of the plaintiff.
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7. To support his contentions, learned counsel appearing
for the appellant has relied upon; the judgment rendered by
this Court in the case PADMAVATI BAI W/O GUNDE RAO
DESHPANDE vs. USHABHAI W/O RAGHVENDRA RAO NADIGAR
made in Regular Second Appeal No.7039 of 2009 decided on
02nd April, 2018, wherein paragraph 22 reads as under:
"22. It is also not in dispute that registered gift
deed executed by the plaintiff in favour of the defendant
on 20.09.1975 and suit was filed on 30.12.1996 after
lapse of more than two decades (21 years). The
cancellation of gift deed or any other declaration has to
be made within three years, when right to sue first
accrues as contemplated under the provisions of Article
58 of the Limitation Act. The plaintiff has not challenged
the gift deed, nor revenue entries made thereon more
than 21 years. It clearly depicts that plaintiff executed
the gift deed in favour of the defendant out of love and
affection only after 21 years, now it is contended that gift
deed was made without consideration of the love and
affection cannot be accepted."
(a) The judgment rendered by Orissa High Court
in the case of KAMALAKANTA MOHAPATRA AND OTHERS
vs. PRATAP CHANDRA MOHAPATRA AND OTHERS reported
in AIR 2010 ORISSA 13, wherein paragraph 9 reads as
under:
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"9. The basic principles of all the decisions obviously is
that a party who had secured a document by fraud should
not be enabled to enjoy the fruits thereof.
Keeping the aforesaid principles, let us now examine the
case at hand. According to the plaintiff on account of undue
influence exercised by Krushna (Defendant No. 1) who not
only practised fraud but also by misrepresentation got the
gift deed (Ext. A) executed and registered by Lokanath. The
words "undue influence", "fraud" and "misrepresentation" are
cognate vices and may in part overlap in some cases, they
are in law distinct categories and in view of Order 6, Rule 4
read with Order 6, Rule 2 of the Code of Civil Procedure
required to be separately pleaded, with specificity,
particularity and precision. In other words general allegations
made in the plaint does not tantamount to particulars
required to be pleaded under the said provision of the Code.
(b) The judgment rendered by High Court of
Calcutta in the case of ANUKUL CHANDRA DAS vs.
ARUP KUMAR DAS reported in LAWS(CAL)-2013-12-46
made in First Appeal No.321 of 2005, wherein, paragraph
21 reads as under:
"21. Again the suit is barred by the provision of Section
34 of the Specific Relief Act, as no relief for recovery of
possession was sought for by the plaintiff in the suit, though
it was admitted by the plaintiff that he is out of possession
and the suit property is now in the possession of the
Developer engaged by the defendant who is constructing a
multi-storied building on the suit property."
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8. Thus relying upon the aforesaid judgments, the
learned counsel appearing for the appellant submits that
substantial question of law arises for consideration, requiring
consideration by this Court.
9. Per contra, Sri. V.B. Ravishankar, learned counsel
appearing for the respondent/plaintiff sought to justify the
judgment and decree passed by the Trial Court and the First
Appellate Court and submitted that the Trial Court and First
Appellate Court have taken into consideration all the factual
aspects on the matter namely that the plaintiff was aged about
eighty years at the time of execution of the alleged Gift Deed.
He further submits that the Trial Court and the First Appellate
Court have considered the fact that the defendant had mislead
the plaintiff in executing the alleged Deed of Gift on the pretext
of executing the Will. Learned counsel appearing for the
respondent also submitted that the defendant apart from being
a daughter of the plaintiff was also a Teacher and as such, the
plaintiff had reposed unblemish faith and confidence in the
defendant, which had been misused by the defendant. The
Trial Court and First Appellate Court have rightly appreciated
this fact in the matter. It is also submitted by the learned
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counsel appearing for the respondent that the defendant,
having sought for counter claim in the nature of declaration and
possession of the property had subsequently made an
application, seeking to withdraw the counter claim which fact
and circumstances would indicate that the defendant was not in
possession of the property. He contended that the defendant
had never brought on record the original Deed of Gift till date
adding to dubious conduct of the defendant. He further
submitted that the plaintiff had learnt about the execution of
alleged Gift Deed only during the month of January-2013 and
suit is filed within three years there of. After issuance of notice
to the defendant, calling upon to re-convey the property, the
learned counsel submits that since the plaintiff continued to by
in possession of the property, the question of requirement of
seeking possession would not arise. Further it is submitted by
the learned counsel appearing for the appellant that the Trial
Court and the First Appellate Court, having taken note of the
factual aspects on record, have rightly decreed the suit of the
plaintiff and no substantial question of law would arise in the
matter. Accordingly, he sought for dismissal of the appeal.
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10. Having heard the learned counsel appearing for the
parties and on perusal of the material on record, the admitted
facts of the matter are that the plaintiff was aged about
seventytwo years on the date of execution of the alleged Deed
of Gift and the defendant being the daughter of the plaintiff,
had accompanied the plaintiff to the office of the Sub-Registrar
for execution of the alleged document. The specific case of the
plaintiff is that the plaintiff had gone to the office of the Sub-
Registrar along with the defendant under the bonafide belief
that the defendant was assisting him in he executing and
registering a Will by which he had intended to bequeath the
suit schedule property in favour of his wife and children
including the defendant. The Trial Court and First Appellate
Court, considering the relationship between the plaintiff and the
defendant that of father and daughter and also considering the
fact that the plaintiff was aged about seventytwo years and
residing in the subject property with his wife and defendant,
was under the dominant relationship of the daughter, have
rightly taken into consideration the requirement of discharge of
burden of proof on the defendant as contemplated under
Section 111 of the Indian Evidence Act, 1872 and drawn
inference as provided under the said provision.
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11. The glaring issue which requires to be looked at is,
non-production of original alleged Gift Deed by the defendant,
who though appeared to have pleaded that the said document
has been lost and has not brought on record any material with
regard to proof of loosing the said original Deed of gift.
Another aspect of the matter is that the defendant, who had
sought for counter claim for declaration and possession in
respect of the suit schedule property, for the reasons best
known admittedly sought for deletion of the said relief. The
defendant has also not entered the witness box to prove and
establish her case. These factual aspects of the matter would
indicate the conduct of the defendant which would not augment
her case. The trial court and the First Appellate Court have
dealt and discussed in detail these aspects of the matter.
Though, it is vehemently contended by the learned counsel
appearing for the appellant that the defendant was in
possession of the suit schedule property, the plaintiff without
seeking possession of the property could not have sought for
declaration, nothing is brought on record to show that the
defendant was in exclusive possession of the suit schedule
property. More particularly, when the defendant herself sought
for a relief of declaration and possession which was later sought
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to be deleted, the said ground sought to be urged would not
survive for consideration.
12. As regards delay in filing the suit is concerned, the
plaintiff has specifically pleaded and proved and same is
accepted by the Trial Court that the plaintiff had learnt about
the execution of alleged Deed of Gift only during the month of
January-2013 when he applied for a copy of the Will he was
issued with alleged Gift Deed and only then he learnt that what
was executed by him was a Gift Deed and not a Will at the
instance of the defendant and immediately, thereafter, the
plaintiff caused a notice to the defendant calling upon her to
re-convey the suit schedule property and within a period of
three years from the date of issuance of notice, a suit has been
filed. Nothing has been brought on record by the defendant to
show that the plaintiff had knowledge of execution of Gift on
the very same date. As already noted above, the defendant
has not entered witness box to substantiate her case. The
question of limitation being one of the facts, there needs to be
a specific plea and proof of the same.
13. As regards the contention of the plaintiff not
examining the witnesses to the Gift Deed is concerned, the said
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requirement would not arise under the fact situation of the
matter as according to the plaintiff, he had never executed a
document titled as Gift Deed and all that he had executed was
a Will. As rightly taken note of by the Trial Court and the First
Appellate Court, the burden was on the defendant to have
proved and discharged that the execution of Gift was under free
and conducive circumstances without there being any undue
influence, misrepresentation or coercion at the instance of the
defendant.
14. In view of the aforesaid detailed consideration of the
pleadings and evidence in detail by the Trial Court and First
Appellate Court, this Court is of the considered opinion that no
substantial question of law would arise for consideration in the
matter. Besides, the judgments relied upon by the learned
counsel appearing for the appellant are not applicable to the
facts of the case on hand. Accordingly, the Regular Second
Appeal is dismissed.
Sd/-
JUDGE
ARK
